Wills and Estates

Question 1

Spouse and descendants survive

Answer 1

If spouse - spouse takes 1/3 or 1/2 of the estate
Under the UPC - spouse takes all if descendants are related to spouse also

Question 2

Classic per stirpes method

Answer 2

One share is created for each child and one share is created for each deceased child who has at least one surviving descendant.
***Divides into shares at the child generation even if no child survives

Question 3

Per capita with representation

Answer 3

Property is divided into equal shares at the first generational level at which there are living takers.
***If a generation has no living members, cross the whole thing out

Question 4

Per capita at each generational level

Answer 4

The initial division is made at the first generational level at which there are living takers, but the shares of deceased persons at that level are combined and then divided equally among the takers at the next generational level.

Question 5

Advancement

Answer 5

A lifetime gift to an heir with the intent that the gift be applied against any share the heir inherits from the donor’s estate.
***Should typically be written

Question 6

USDA

Answer 6

Uniform Simultaneous Death Act
When order of death cannot be established, the property is disposed of as if the decedents had survived each other
***Avoided by the 120-hour rule, which requires a person survive the decedent by 120 hours

Question 7

Valid Will Requirements

Answer 7

1. legal capacity
2. testamentary capacity
3. testamentary intent and
4. executed with formalities

Question 8

Testamentary capacity

Answer 8

Have the capacity to understand:
1. the nature of their act
2. the nature and extent of property
3. the persons who are the natural objects of their bounty and
4. the above factors and be able to formulate an orderly scheme of disposition

Question 9

Formal requirements of a will

Answer 9

Most states require that:
1. the will or codicil is in writing
2. it is signed by the testator
3. there are two attesting witnesses
4. the testator signs in each of the witnesses’ presence and
5. the witnesses sign in the testator’s presence

Question 10

Self-proving affidavit

Answer 10

Recites that all the elements of due execution were performed and is sworn to by the testator and witnesses before a notary.

Question 11

Ademption by satisfaction

Answer 11

A testamentary gift is satisfied in whole or in part by an inter vivos transfer from the testator to the beneficiary after the execution of the will if the testator intends such.

Question 12

Abatement order

Answer 12

1. property passing by intestacy
2. residuary estate
3. general legacies
4. demonstrative legacies
5. specific bequests and devises

Question 13

Republication by codicil

Answer 13

The will and codicil are treated as one instrument speaking from the date of the last codicil’s execution.

Question 14

Undue Influence

Answer 14

1. the influence existed and was exerted
2. the effect of the influence was to overpower the mind and free will of the testator and
3. the resulting disposition would not have been executed but for the influence